Google LLC v Defteros [2021] HCATrans 216 (10 December 2021)

Last Updated: 13 December 2021

[2021] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2021

B e t w e e n -

GOOGLE LLC

Applicant

and

GEORGE DEFTEROS

Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 DECEMBER 2021, AT 10.30 AM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MS G.L. SCHOFF, QC and MS C.L. ALDEN for the applicant. (instructed by Johnson Winter & Slattery)

MR D.P. GILBERTSON, QC appears with MR J.A. CASTELAN and MR E.H. GUTHRIE for the respondent. (instructed by Defteros Lawyers)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. The questions that we submit arise worthy of a grant of special leave are those set out, as your Honours know, at page 249 of the application book. Adopting that sequence, it is the first of those questions concerning the provision of what I will call a neutral, that is, itself not conveying any defamatory matter, hyperlink, is the threshold issue.

Since the papers in the special leave application were completed, of course, this Court’s decision and reasons in Voller are to hand and, in relation to it, may we go directly to a question of what we submit is importance to the development and, to the extent it be appropriate, the conformity of the common law internationally.

As, your Honours appreciate it, we relied unsuccessfully below on the approach that had been taken in Canada in Crookes v Newton. The way in which we failed in that argument below, in our submission, is at odds with what on another but not completely unrelated issue, attracted from this Court approbation of Crookes v Newton.

In paragraph 90 of Voller, your Honours will recall that Justices Gageler and Gordon explicitly referred to the impliedly desirable substantial conformity of the common law of Australia with what was there described as the strongly reasoned common law decision, among others, of Crookes v Newton.

Now, of course that was a different aspect of the diverse problems that arise by reason of what might be called the digital universe as a mode of communication and the assembly of and access to knowledge. But, in our submission, it is sufficiently related, thematically and part of a scheme of a satisfying regime, that that reference alone in Voller, from two members of the majority to Crookes v Newton, justifies this Court considering whether or not the Court of Appeal was correct in the approach it took to the persuasive force of the reasoning in Canada.

EDELMAN J: Mr Walker, is the aspect of Crookes v Newton upon which you rely – or the essence of it – that a hyperlink is always to be regarded as mere facilitation?

MR WALKER: There has to be an emphasis on “mere”, of course, in order to bring into play the possibility of innocent dissemination – yes, your Honour. But, in our submission, yes, it is the rejection of the notion of liability as a publisher for the mere hyperlink – that is a hyperlink devoid of any content containing or suggestive of the defamatory content in question – that is at the heart of the reasoning in Crookes v Newton that we would respectfully seek to draw to this Court’s attention as a reason to overturn the approach taken in the Court of Appeal.

In our submission, there is therefore that threshold question as to whether or not there are hyperlinks of what might be called a usual – perhaps even normal – quality or character that would remove what I will call the publisher of the hyperlink from the category of person caught by the otherwise strict rule of common law with respect to publishers of defamatory material.

KIEFEL CJ: Mr Walker, were special leave to be granted, would you need to distinguish Voller?

MR WALKER: No, we think not, with respect, your Honour. It is certainly not a case that contains any either findings of fact or, more importantly, expressions of principle or the policy of the law which cuts across what we would wish to advance with respect to hyperlinks. We say that particularly – I am sorry.

KIEFEL CJ: I had in mind the primary judge’s decision at paragraph 54 that the provision of a hyperlink search result is instrumental to the communication of the content of the web page to the user as being somewhat consistent with the decision in Voller.

MR WALKER: Yes. It is not really probably, with respect, of so much a matter of distinguishing Voller as appreciating that Voller’s use of those general expressions – Webb v Bloch will suffice as the evocation of the line of cases – is obviously always a description applied to the facts found in the particular case. We certainly wish to submit that just as the persons who supply motor vehicles which convey newspapers to newsagents are instrumental in a sense which is true but trivial in relation to the law of defamation, so with respect to those who provide a means of accessing someone else’s archive or fund of information by a hyperlink, should be regarded as a true but trivial instrumental role.

If that be distinguishing, then so be it. But, of course, every decision is a decision on its facts and there are no facts in Voller which stand in the way of this Court upholding an appeal were special leave to be granted on that point. However, we accept, of course, that it may involve a reading of the very broad notion of being instrumental – as opposed to what might be called mere facilitation, the true but trivial role – that would be at the heart of every case which arises in the working out of those general propositions concerning the strict rule and its application to the evolving ways in which information can be accessed by persons interested to obtain it.

Your Honours appreciate that it is for those reasons that, in particular, we submit that the issue that we raise as the first question is appropriately combined, on the facts of this case, which are a very good vehicle for the purpose, with consideration both of statutory and common law qualified privilege – to do as your Honours appreciate with the very purpose of access via the internet and a search engine to the ever‑changing and, on balance, socially beneficial fund of information through hyperlinks.

It is for those reasons, in our submission, that Crookes v Newton stands at the moment quite apart from, opposed to, and in ways which are not sufficiently explained, with respect, in the Court of Appeal, from what the law would appear to be in this country at the moment were this Court not to consider the questions in an appeal. That, in our submission, would rather defer what ultimately surely is for this Court and this Court alone to pronounce in an appropriate case what the law is with respect to hyperlinks themselves devoid of any suggestion of defamatory content either in them or promised by way of a preliminary indication by them.

Now, your Honours appreciate that it is for those reasons that we also call in aid with respect to this Court’s role as the apex of the judicature what we submit are at least arguably the differences between the South Australian Duffy Case and its somewhat various reasoning and the Court of Appeal’s reasoning in our case, because there, with respect - and there is difference between the parties concerning this - it is at least arguable, we submit strongly so, that Duffy turned upon what might be called the textual enticement, the tidbit, the indication of something to the derogation of the plaintiff in the terms of the hyperlink itself, that is, the search result which produced the hyperlink.

EDELMAN J: Mr Walker, if one were to go back to your earlier analogy, is a rough way of describing the difference that Duffy has really treated the search provider as analogous to the vendor of the newspapers, whereas you say that the mere hyperlink or the provision of the mere hyperlink ought to be treated as analogous to the deliverer of the newspapers?

MR WALKER: That is – all analogies which involve digital and paper, your Honour, are fraught, but having made that caveat, I think the answer is yes. If one thinks, rather, using current jargon, of the snippet which is, as it were, the framing for the supplied hyperlink produced by the search result, then we submit that the analogy that Justice Edelman has raised is one of the ways in which the importance of the issue arises, and makes this case an appropriate one for a grant of special leave.

EDELMAN J: Mr Walker, was there evidence before the primary judge that there were no snippets provided in relation to any of the searches of the respondent?

MR WALKER: I hope this is a direct answer. The evidence provides nothing other than the hyperlink, that is, there is no material provided, by way of snippet, that was defamatory or suggestively so. It is that last qualification that is the critical matter. So, if one talks about – using various expressions – gangland wars, for example – apart from persons unlikely to sue, there is no defamation, obviously, of lawyers involved in that as the content of a snippet. The evident public interest in having access to journalism reporting on a phenomenon called gangland wars speaks for itself.

Normally – that is, in the usual run – subject to extraordinary evidence of people searching, for example, because their employer asks, “What does Google say about me?” – in the usual case, anybody responding, by using a hyperlink, through such a neutral non‑defamatory snippet, can hardly be said to have been enticed to see defamatory material on that basis.

Of course, it was in Duffy that the important restraint that is, no doubt, appropriately to be applied to operators such as Google in what they, themselves – apart from the hyperlink – convey, is the reason why there was liability in that case. The material that Google threw up was material which itself contained the so‑called enticement.

In our submission, that is so far from being true – either of any hyperlink taken on its own and in isolation or of what your Honours can readily understand to be – if not most – a very large class of hyperlinks supplied in the course of Google snippets as to throw up this as a most important decision for the continued conduct of this, in our submission, overall, plainly, socially beneficial facility.

It is for those reasons, in our submission, that one then sees moves to another of the questions that we have raised, all of which we urge are appropriate to a combined grant, namely that which at first sight appears to be quite fact specific to this case. By that I refer to the notification to us as operator the potentially defamatory matter – it is the third question on our page 249.

Now, it arises, as your Honours appreciate, through a cascading set of possibilities. If we are wrong on our threshold issue, then there will be the question of innocent dissemination, question 2, and that will lead in turn to questions about the kind of conduct which will bring the safe harbour of innocent dissemination to an end after a reasonable time, there having been, as your Honours appreciate, facts of a kind likely to recur innumerable times in this case, namely a system and a procedure for dealing with what I will call notifications of, normally protests about, defamatory material available on Google Search, and a response to that, including consideration as to what might be called the provenance, including its likely quality, of the supposedly defamatory material, in this case a newspaper publication from what, if I may say so, can sensibly without condescension be called a respectable source, The Age, which was of considerable duration or longevity in public availability, combined, not suggestive of any carelessness or unreasonable conduct, by us in treating that as fit material to which a hyperlink might be provided upon an appropriate Google search.

What your Honours know is that the so-called notification in this case contained the utterly inexcusable falsehood that The Age had been sued and had agreed to take the material down and, in our submission, this is a case which provides therefore a concrete and real opportunity for the Court to step through the possibilities, starting with our threshold question, and moving then to the alternative availability of innocent dissemination, through to that aspect of the conduct of our operations involved in responses to notifications which, appropriate in our submission, would provide the opportunity for the Court to say something about the salutary responsibility that should be imposed on those who draft notifications so as to make them a fit occasion for bringing to an end innocent dissemination as a safe harbour.

It is for those reasons, in our submission, that combined - this is a case that in the near weight of Voller provides, with respect, an opportunity for the common law, including, I should say, the common law statutory interpretation of statutory qualified privilege, to grapple with the ways in which the evident usefulness of hyperlinks ought to be regarded in relation to liability for defamation undoubtedly committed by the downloading of defamatory hyperlinked material.

So, none of this says anything about the clarity of the position pronounced by the Court in Dow Jones. None of it cuts across what is said in Voller concerning the strict rule and none of it, with respect, would cut across the evident beneficial purposes of a search engine enabling one‑click access to the almost infinitesimal range and consequently shifting change of
information about matters in which, by dint of the search and the use of the hyperlink, a person has demonstrated an interest for the purpose of common law and certainly an apparent interest for the purposes of statutory qualified privilege. It is as though - - -

EDELMAN J: Mr Walker, what do you say about the special order for costs that is sought by the respondent in circumstances where the issue is of far greater relevance to your client than the $50,000 judgment that the respondent has in its favour?

MR WALKER: It would appear to be a paradigm case for the Court to impose a condition to that effect. May it please your Honours.

KIEFEL CJ: Mr Walker, do I take it that your client is not offering?

MR WALKER: We are, yes, your Honour. It would appear to be a case where that is what the Court should do.

KIEFEL CJ: Yes, thank you.

MR WALKER: I am so sorry, your Honour.

KIEFEL CJ: Yes, thank you. Yes, Mr Gilbertson.

MR GILBERTSON: Thank you, your Honour. In our submission, this case is not appropriate for the Court’s attention for two reasons. The proposed grounds lack sufficient prospects of success, and this is not a suitable vehicle to consider special leave question 1.

On the question of publication, the applicant published the web matter, in our submission, in accordance with the principles in Webb v Bloch and Voller. Here, the applicant’s automated systems produced the search result, which included the hyperlink. There was notice to the applicant of the defamatory material. The search result by its terms enticed the searcher to click on the hyperlink, and the search result incorporated the defamatory material without repeating it in the sense explained by the Court of Appeal at paragraph 86, application book 179.

We submit that in accordance with Webb v Bloch and Voller, the applicant, by reason of those matters, participated in the communication of defamatory matter, or was an intentional participant in a process directed to making the matter available for comprehension. In our submission, all ‑ ‑ ‑

EDELMAN J: Mr Gilbertson, what do you say about Mr Walker’s analogy as applied to the factors that you rely upon? For example, would it matter if a deliverer of newspapers were told that the newspapers contained defamatory matter?

MR GILBERTSON: Yes, it might, because it is very difficult to match the analogy with this case, but if a deliverer had been told that the matter contained defamatory material, then by not ceasing to continue to deliver them, they would be a publisher, in our submission.

I will return to the question of enticement. In our submission, it is all the words of the search result which entice the reader by exciting an interest in them to click on the hyperlink. Your Honours will find a version of the search result at paragraph 38 in the court below’s reasons, which is at application book 151. The title, which is the hyperlink:

Underworld loses valued friend at court - SpecialsGanglandKillings -

Then underneath that is what was referred to in the evidence at first instance as the shortened form of the URL, which has:

www.theage.com.au > Features > Crime & Corruption -

and the last part of the search result is what was referred to as the “snippet”:

June 18 2004 - Pub bouncer-turned-criminal lawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online.

As for incorporation, the search result, while not repeating the defamatory material, contained words – as the Court of Appeal in our submission correctly observed, which have a close connection to the parts of the Underworld article dealing with Mr Defteros. The words in the search result are the title, the first part and the snippet and the parts of the Underworld article are the paragraphs commencing:

Pub bouncer-turned-criminal lawyer George Defteros -

We submit that notice is relevant where the defendant, as here, was not the originator or first publisher of the defamatory material. The case was conducted in the courts below on the basis that Google was not a publisher until after it had received notice. This case is different, in our submission, to both Crookes v Newton and Duffy. Crookes v Newton was a bare hyperlink, it did not repeat, endorse or adopt the defamatory material. There was no search result or words accompanying the hyperlink which enticed the reader to click on it, and Duffy - the search results repeated and drew attention to the defamatory imputations.

We submit that the Court of Appeal was plainly correct at 78, which is at application book 177, that the judgments in Duffy do not purport to lay down any rule that before an internet search engine provider can be held to be a publisher for the defamatory content of material accessed by clicking on a hyperlink, that the search result itself must be defamatory.

Special leave question 1, in our submission, is entangled with several questions of fact which include the following – whether notice was given to the search engine operator, the capacity of the search engine operator to prevent the search result from appearing, the reasonableness of time after notice is given, whether the search result adopts or endorses the defamatory material in the way described by the Chief Justice and Justice Fish in Crookes v Newton, whether there is enticement and whether the search result contains words that are closely connected with the defamatory material. In relation to the notice, we submit that the Court of Appeal was ‑ ‑ ‑

KIEFEL CJ: Just before you go on to that question of notice, Mr Gilbertson, what do you say about the relevance of Voller to this case – to the question of publication?

MR GILBERTSON: We say that it is a decision on its facts but, on the basis of the principles in Voller, the applicant here published the web matter. The notice here, in our submission, was sufficient to inform the applicant of the defamatory material – notwithstanding the matters that our learned friend has referred to. If I could turn to common law qualified privilege? In our submission, the court below applied orthodox principles in relation to common law qualified privilege. Their Honours refer, at paragraph 171 to the essential nature of:

[r]eciprocity of duty or interest –

There has to be a close scrutiny, as their Honours pointed out, to all the circumstances of the case, including the relations of all concerned. There was no legal, moral or social duty on the applicant to return search results in response to a search query of the name, George Defteros. The mere making of a search query, in our submission, does not establish that the searcher had a legitimate interest in the search result that is given in response. Significantly, the primary judge found, as a fact, that the Underworld article was published to a small number of persons who accessed it out of idle interest or curiosity.

Now, on the question of statutory qualified privilege, the Court of Appeal was clearly correct, in our submission, that the applicant had not established on the balance of probabilities that the persons to whom the
Underworld article was published had an interest or an apparent interest. Their Honours referred to the relevant principles at paragraphs 208 to 215, including Austin v Mirror Newspapers and Barbaro v Amalgamated Television Services, and their Honours pointed out that the courts had placed a wider construction on the words “an interest” in section 30 of the Act than was previously accorded to the concept of interest for the purpose of common law qualified privilege.

The circumstances of this case are different from Duffy, at least in relation to the analysis made by the Chief Justice where his Honour referred to two specific classes of persons to whom the article was published, and who had, as his Honour found, a relevant interest. The Underworld article here was published throughout Australia, well outside Melbourne and outside Victoria and, in our submission, if special leave were to be granted, it ought to be on the conditions that have been referred to. If the Court pleases.

KIEFEL CJ: Thank you, Mr Gilbertson. Anything in reply, Mr Walker.

MR WALKER: Briefly. Your Honours will recall that at page 39 of the application book, in her Honour’s paragraph 62 at first instance, the conclusion which formed the basis of the later appellate argument was reached by her Honour, in plain terms, that is:

nothing in the search results themselves that incorporated or drew attention to the defamatory imputations –

alleged to have been conveyed by the relevant articles. There is nothing in the suggested but not finely articulated notion that there was something nefarious or discreditable in the forms of the search results themselves, the so‑called snippet notion.

The second proposition concerning.....that we would wish to reply on is this. It is, in our submission.....for the state of the law in this country that there are arguments of the excessive subtlety that my learned friend refers to in relation to what is to be gathered, if anything, outside the facts of its case from Duffy compared to what may be gathered if anything beyond the facts of its case from the Court of Appeal decision now before your Honours in this application. It is in relation to a matter, namely using a search engine to research and find out information in which you have some kind of interest that makes this, in our submission, a matter of surpassing general importance and to the law as well.

At page 171 and following, paragraph 65 and following, in the Court of Appeal, their Honours draw to attention passages which, in our submission, including in paragraph 67, provide weighty reasoning for
this Court rather than those who seek to read the tea‑leaves of Duffy and the Court of Appeal in this case to pronounce what is the position concerning the mere facilitation, as Justice Abella’s approach has been described, by the provision of a hyperlink itself, not defamatory and not couched or framed in a defamatory snippet.

It is for those reasons that the unsatisfactory nature of the law in this regard can be seen highlighted at pages 177 and 178 in their Honours’ reference to Chief Justice Kourakis’ approach in Duffy. That is an approach which, in our submission, represents a most undesirable instability of approach, that is an obscurity of principle in a matter which ought to be the subject of a finding as clear as this Court’s pronouncement of the strict rule for publishers in Webb v Bloch and in Voller. May it please your Honours.

KIEFEL CJ: Yes, thank you. The Court will adjourn to consider the course that it will take.

AT 11.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.08 AM:

KIEFEL CJ: There will be a grant of special leave in this matter conditioned on the applicant paying the respondent’s costs of the appeal and not disturbing the costs orders in the courts below.

Mr Walker, the matter should be concluded within a day?

MR WALKER: Yes, your Honour.

KIEFEL CJ: Do you agree with that, Mr Gilbertson?

MR GILBERTSON: Yes, your Honour.

KIEFEL CJ: Yes, thank you. The Court will now adjourn.

AT 11.09 AM THE MATTER WAS CONCLUDED